The defendants present the affidavit of Caleb Scott which states that Scott informed Nicely of the withdrawal of Nicely's grievance at either the August 26, 1987 or the September 30, 1987 union meetings. Therefore, the defendants assert that Nicely, by filing this complaint on March 31, 1988, filed one day after the running of the statutory period. In response, Nicely contends that Scott did not inform him of the withdrawal of his grievance until 8 weeks after August 3, 1987, which would be October 3, 1987. (August 3, 1987 was the day on which Caleb Scott and John McCluskey, the staff representative for USX, discussed Nicely's grievance.)

This Court finds that the statute of limitations begins to run when it becomes clear that further internal appeals would be futile. See Scott v. Local 863, International Brotherhood of Teamsters, 725 F.2d 226, 229 (3d Cir. 1984) (citing Clayton v. Automobile Workers, 451 U.S. 679, 689-693, 101 S. Ct. 2088, 2095-97, 68 L. Ed. 2d 538 (1981)); See also Dowty v. Pioneer Rural Electric Co-op., Inc., 770 F.2d 52, 56 (6th Cir.) cert. denied, 474 U.S. 1021, 106 S. Ct. 572, 88 L. Ed. 2d 557 (1985) (limitations period begins to run when plaintiff knows or should have known of the union's alleged breach); DelCostello v. International Brotherhood of Teamsters, 588 F. Supp. 902, 909, n. 21 (D.Md. 1984) affirmed 679 F.2d 879 (4th Cir. 1984). Because of the disputed notice issue, this Court determines that the date on which Nicely knew or should have known that the USWA would no longer process his grievance is a genuine issue of material fact.

Second, the defendants seek to have this Court strike Nicely's demand for a jury trial. In Leach v. Pan American World Airways, 842 F.2d 285 (11th Cir. 1988), the Court of Appeals for the Eleventh Circuit, relying on United Parcel Service, Inc. v. Mitchell, 451 U.S. at 62 n.4, 101 S. Ct. 1559 at 1564 n.4, 67 L. Ed. 2d 732 (1981), and disregarding Cox v. C.H. Masland & Sons, 607 F.2d 138 (5th Cir. 1979), applied the criteria outlined in Ross v. Bernhard, 396 U.S. 531, 90 S. Ct. 733, 24 L. Ed. 2d 729 (1970), for deciding whether the Seventh Amendment required a jury trial. The Eleventh Circuit held that because the arbitration award stands between the employee and any relief which he may be awarded against the company, the "suit against the employer is 'inextricably intertwined' with that against the union." Id. at 290. Additionally, the Eleventh Circuit found that the statutory scheme of labor law provided the "imperative circumstances" under which a jury trial was not required. The Eleventh Circuit also enunciated the opinion that monetary damages were not necessarily a legal remedy. The Eleventh Circuit concluded that it could not separate the legal and equitable remedies and, therefore, a jury trial was not required by the Seventh Amendment.

In King v. Fox Grocery Co., 678 F. Supp. 1174 (W.D.Pa. 1988), Judge Weber analyzed the issue in a similar manner as the court in Leach. Relying on Mitchell and DelCostello, the court held that the hybrid action is most "likened to an unfair labor practice action," which is a suit in equity that does not require a jury. King, 678 F. Supp. at 1176. The court, although conceding that the § 301 action for backpay is an action providing for a legal remedy, found that because "all relief flows from equitable remedies" and because Congress has created a complex federal statutory scheme without providing for a jury, a jury trial was not required. King, 678 F. Supp. at 1177.

This Court finds the Fourth Circuit's reasoning in Terry v. Chauffeurs, Teamsters & Helpers, Local 391, 863 F.2d 334 (4th Cir. 1988), persuasive. The Fourth Circuit, noting Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 79 S. Ct. 948, 3 L. Ed. 2d 988 (1959), first asked whether the suit was in the nature of a suit at common law. The Fourth Circuit then found that the "imperative circumstances" required by Ross to strike a jury demand were only those in which "irreparable harm" would arise. Third, the court, citing Ross, 396 U.S. at 538, 90 S. Ct. at 738, noted that the Seventh Amendment depends on the nature of the issue to be tried, rather than the character of the overall action. Thus, the Fourth Circuit concluded that the rights and remedies involved in a § 301/fair representation action were typically enforced in an action at law. Not only is it a jury issue whether the employer breached the collective bargaining agreement but it is also a jury issue whether the union breached its duty of fair representation. In sum, the plaintiff is entitled to a jury trial of all identifiable legal issues such as declaratory relief and damages.

The present suit is essentially an action for damages caused by an alleged breach of an employer's obligation embodied in a collective bargaining agreement. Such an action closely resembles an action for breach of contract cognizable at common law.

Id. 383 U.S. at 705,
*fn7"
, 16 L. Ed. 2d at 199, note 7. The Supreme Court also found that differing state limitations periods for § 301 actions would not disrupt federal uniformity:

The need for uniformity, then, is greatest where its absence would threaten the smooth functioning of those consensual processes that federal labor law is chiefly designed to promote -- the formation of the collective agreement and the private settlement of disputes under it. For the most part, statutes of limitations come into play only when these processes have already broken down. Lack of uniformity in this area is therefore unlikely to frustrate in any important way the achievement of any significant goal of labor policy.

Id. 383 U.S. at 702, 16 L. Ed. 2d at 198.

In Mitchell the Supreme Court analyzed the limitations issue in the context of the judicially created hybrid cause of action. The Court recharacterized the nature of the cause of action and focused upon the nature of the breach of duty claim in order to find an analogous limitations period. The Court stated:

[the] indispensable predicate for such an action is not a showing under traditional contract law that the discharge was a breach of the collective-bargaining agreement, but instead a demonstration that the union breached its duty of fair representation . . . . Respondent required in some way to show that the union's duty to represent him fairly at the arbitration had been breached before he was entitled to reach the merits of his contract claim. This, in our view, makes the suit more analogous to an action to vacate an arbitration award then to a straight contract action.

Id. 451 U.S. at 63. The Court concluded that the 90 day state limitations period for suits to vacate an arbitration award was the proper limitations period.

In DelCostello the Supreme Court once again addressed the same issue as in Mitchell, but held that federal uniformity concerns mandated that the 6 month limitations period found in § 10(b) of the NLRA was the proper limitations period. The Court, drawing from the language of Mitchell and Hoosier stated:

"The suit is thus not a straightforward breach-of-contract suit under § 301, as was Hoosier, but a hybrid § 301/fair representation claim, amounting to 'a direct challenge to the private settlement of disputes under [the collective-bargaining agreement].'" Mitchell, supra, 451 U.S. at 66, 67 L. Ed. 2d 732[], 101 S. Ct. 1559 (Stewart, J., concurring in judgment), quoting Hoosier, 383 U.S. at 702. Also unlike the claim in Hoosier, it has no close analogy in ordinary state law. The analogies suggested in Mitchell both suffer from flaws, not only of legal substance, but more important, of practical application in view of the policies of federal labor law and the practicalities of hybrid § 301/fair representation litigation. In Mitchell, we analogized the employee's claim against the employer to an action to vacate an arbitration award in a commercial setting. We adhere to the view that, as between the two choices, it is more suitable to characterize the claim that way than as a suit for breach of contract . . . . Moreover, an action to vacate a commercial arbitral award will rarely raise any issues not already presented and contested in the arbitration proceeding itself.

The employee's interest in setting aside the 'final and binding' determination of a grievance through the method established by the collective bargaining agreement unquestionably implicates 'those consensual processes that federal labor law is chiefly designed to promote -- the formation of the agreement and the private settlement of disputes under it.' Hoosier, 383 U.S. at 702, 16 L. Ed. 2d 192, 86 S. Ct. 1107. Accordingly, 'the need for uniformity' among procedures followed for similar claims, ibid., as well as the clear congressional indication of the proper balance between the interests at stake, counsels the adoption of . . . .

Id. 462 U.S. at 171, 76 L. Ed. 2d at 493. Thus, the Court emphasized the private nature of the resolution of disputes in the labor law area and the unique nature of this developing federal common law cause of action. DelCostello, 462 U.S. at 163, 76 L. Ed. 2d at 488. Based upon the seemingly broad language of DelCostello, the courts in Leach and King concluded that the Supreme Court intended to usurp the Seventh Amendment right in this area.

Despite the recharacterization of the cause of action by the Supreme Court, we find that the Supreme Court characterized the hybrid action exclusively for limitations purposes and its discussion of uniformity focused upon state and federal relations. We also find that the language in Mitchell and DelCostello, which the defendants argue is instrumental in eliminating the Seventh Amendment right, is language taken from Hoosier and relates exclusively to the need for federal uniformity of limitations' periods. Language found in Hoosier and its progeny, such as the "final and binding determination of a grievance through the method established by the collective bargaining agreement unquestionably implicates those consensual processes that federal labor law is chiefly designed to promote -- the formation of the agreement and the private settlement of disputes under it," Hoosier, 383 U.S. at 702, 16 L. Ed. 2d 192, 86 S. Ct. 1107, only addresses the issue of limitations in Hoosier.

We find that the Supreme Court in DelCostello has held that a § 301 cause of action, although combined with the fair representation suit, is "inextricably interdependent." DelCostello, 462 U.S. at 164, 76 L. Ed. 2d at 489, 103 S. Ct. at 2290-91. Thus, the Court in DelCostello made it clear that the two causes of action are materially independent of one another but are joined for purposes of creating a federal cause of action. Accordingly, we disagree with the Leach and King holdings because they characterized the hybrid cause of action as "inextricably intertwined."
*fn1"

We do find the Supreme Court creating a body of federal labor law. The Court stated:

Many fair representation claims . . . include allegations of discrimination based on membership status or dissent views, which would be unfair labor practices under § 8(b)(1) or (2). Aside from these clear cases, duty of fair representation claims are allegations of unfair, arbitrary, or discriminatory treatment of workers by union - as are virtually all unfair labor practice charges made by workers against unions. See generally R. Gorman, Labor Law 698-701 (1976). Similarly, it may be the case that alleged violations by an employer of a collective bargaining agreement will also amount to unfair labor practices.

DelCostello, 462 U.S. at 170, 76 L. Ed. 2d at 493.

However, we are reluctant to disregard the Ross criteria and do away with a jury trial merely because of implications found in DelCostello. This Court is also persuaded that the federal uniformity concerns addressed in Hoosier and its progeny are unrelated to the Seventh Amendment issue.

In determining a party's right to a jury trial it is the procedural and remedial sections of the statute creating the right which must be examined. See Tull v. United States, 481 U.S. 412, 107 S. Ct. 1831 [95 L. Ed. 2d 365] (1987); Lorillard v. Pons, 434 U.S. 575, 584 [55 L. Ed. 2d 40, 98 S. Ct. 866] (1978). Where the particular remedial section in the statute provides for only equitable remedies than no right to a jury trial exists. Lincoln v. Board of Regents of University System of Georgia, 697 F.2d 928, 934 (11th Cir.) cert. denied, 464 U.S. 826 [78 L. Ed. 2d 102, 104 S. Ct. 97] (1983) citing Lehman v. Nakshian, 453 U.S. 156, 163-164 [69 L. Ed. 2d 548, 101 S. Ct. 2698] (1981). As one learned commentator has pointed out, within a particular statute a right to a jury might exist as to some of the enforcement sections and not as to others. (See note 4) 5 J.Moore, Federal Practice § 38-11[7] 1988 . . . . If the statutory analysis does not reveal a congressional intent to provide a jury trial, the seventh amendment to the United States Constitution must be examined to determine if it commands that a jury trial be provided.

Id. at 392-393. The court further declared:

Even though Cox is not entitled to a jury trial under § 502(a)(3), our analysis is not over because he may still be entitled to a jury trial if his claim for relief under § 502(a)(1)(B) is legal in nature . . . . It is established law in this circuit that the substance of the pleadings must be examined to determine if the issues raised are triable to a jury. Laskaris v. Thornburgh, 733 F.2d 260, 264 (3d Cir.), cert. denied, 469 U.S. 886 [83 L. Ed. 2d 196, 105 S. Ct. 260] (1984).

Id. at 394. The Third Circuit in discussing Keystone recognized the Eleventh Circuit contention in Bugher v. Feightner, 722 F.2d 1356, 1358 (7th Cir. 1983) that a § 301 action is a suit for breach of contract seeking damages and, therefore, an action at law triable to a jury. Consequently, we find that the Third Circuit has emphasized the remedial nature of the statutory scheme as instructed in Curtis.

The Seventh Amendment requires that the legal portions of the § 301 cause of action shall be heard by a jury. We also conclude that a jury is not required to decide the fair representation cause of action because the record reflects that it is closely analogous to that of an unfair labor practice found in the National Labor Relations Act.

We determine that there exists a genuine issue of fact as to when the statute of limitations on Nicely's claim began to run. Second, we conclude that the Seventh Amendment requires a jury to decide the § 301 cause of action and no jury is required to decide the fair representation cause of action. Third, we will strike the demand for punitive damages found in paragraph 19 of Nicely's complaint. An appropriate order will be filed.

ORDER

AND NOW, this 30th day of March, 1989, for the reasons set forth in the accompanying Memorandum Opinion,

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